FactCheck flubs Obama gun fact
check

FactCheck.org is an
excellent project of the
Annenberg Public
Policy Center of the University of Pennsylvania. It a
non-partisan organization which provides factual evaluations
of the claims of and about political figures. I have cited
it in my own writing, and will continue to do so. However,
that FactCheck has a well-deserved reputation for accuracy
and good judgment does not mean that its work is infallible,
as the VC has
pointed
out previously. The Encyclopedia Britannica also has a
well-deserved reputation for accuracy and impartiality, but
the Britannica
sometimes contains errors or overstatements.

FactCheck’s September 22, 2008,
report on the National Rifle Association’s advertising
critical claims that the NRA “distorts Obama's position on
gun control beyond recognition.” FactCheck itself, though,
has overstated its claims, and made several errors.

The NRA’s advertising points to
various positions which Obama has taken over the years. Not
one of these positions (with a single very dubious
exception, discussed below) has been subsequently repudiated
by Obama.

Much of FactCheck’s critique of the NRA is the mere
recitation of vague platitudes by Obama claiming that he
supports of the Second Amendment.

FactCheck fails to recognize that Obama's platitudes and the
NRA's charges could be simultaneously true. For example,
John McCain might sincerely say, “I strongly support First
Amendment rights.” A group critical of McCain might take out
advertising which says “McCain sponsored the most
comprehensive restriction of political speech in American
history, and he is an opponent of your First Amendment
rights.” All the statement are true: McCain sponsored the
McCain-Feingold act, which outlaws a great deal of speech
related to federal elections; people who are strong First
Amendment advocates can therefore conclude that McCain is a
very serious threat to First Amendment rights. McCain,
however, is doubtless sincere in his belief that the
political speech restrictions are consistent with his
support for First Amendment rights. His First Amendment is
simply much smaller than the First Amendment which free
speech groups like the ACLU support. FactCheck would be
incorrect if it declared that the free speech group was
making "false" charges which "distorted" McCain's views.

Likewise, the NRA is not distorting Obama’s record when they
accurately point out his advocacy for draconian gun
controls, even if Obama offers generic platitudes about
Second Amendment rights. Obama may sincerely believe that
the various measures he has promoted are consistent with the
Second Amendment; the NRA disagrees, and it is not factually
inaccurate for the NRA to say so.

On some of the charges, FactCheck appears not to have
studied Obama’s words carefully. For example, one NRA claim
is that Obama wants to “Ban the Manufacture, Sale and
Possession of Handguns.” FactCheck accurately reports
that Obama did endorse such a position in his 1996 Illinois
State Senate race. (FactCheck also supplies the details of
Obama’s 2008 claim that the questionnaire was filled out by
an aide without Obama’s knowledge, even though Obama’s
handwriting is on the cover of the questionnaire.) But
FactCheck asserts that the NRA is lying because of Obama’s
response to the same question in 2003: “While a complete ban
on handguns is not politically practicable, I believe
reasonable restrictions on the sale and possession of
handguns are necessary to protect the public safety.”

The 2003 response hardly means that Obama does not favor a
handgun ban. He simply said he recognized it as politically
impracticable. A candidate can simultaneously support
something, and consider it “politically impracticable.” For
example, in a 1997 Connecticut Law Review
article, Glenn Reynolds and I wrote in favor the
historic and textual interpretation of the Congressional
power over interstate commerce: that it applies to
commercial activities conducted across state lines, and to
the regulation of activities which are “necessary and
proper” for regulating interstate commerce. Thus, I think
that laws about who can possess guns (e.g., persons
convicted of particular crimes, children, alcoholics, etc.)
should be matters of state law, not federal law. (With the
caveats that state laws cannot violate the Second Amendment,
and that other federal powers might be legitimately used in
certain situations; for example, congressional power over
immigration might be an appropriate basis for a federal
restriction on gun possession by illegal aliens.)

If I were running for Congress in 2008, and somebody asked
“Do you favor repealing federal laws about the mere
intrastate possession of guns?” I would probably explain
that a complete repeal is “not politically practicable,” and
would say that I would work instead for marginal
improvements in the laws.

Now suppose my opponent puts out a brochure which says
“Kopel favors repeal of federal laws on gun possession.” Is
the opponent distorting my position beyond recognition?
Well, probably not.

A good FactCheck article would point out the difference
between my 1997 position and my current statement on what is
“politically practicable.” But my very choice of the words
“politically practicable” indicates that if political
circumstances changed, so that a broad repeal were
politically practicable, then I would support it.

Conversely, if I (or, Obama or McCain) were asked "Do you
think that the federal government should require journalists
to get a government license?" the response would not be
"Licensing journalists is not politically practicable, but
there are other steps the government could take to improve
media quality."

So Obama’s 2003 acknowledgement that handgun prohibition was
not “politically practicable” (at least for a U.S. Senate
term that would begin in 2005) is consistent with support
for handgun prohibition.

FactCheck concludes the section by citing Obama’s claim at
an April 2008 debate “I have never favored an all-out ban on
handguns." The claim is, to say the least, highly dubious in
light of the evidence about his 1996 questionnaire, and
FactCheck should not have treated this dubious claim as the
final word on the subject. FactCheck failed to report that
during the Potomac Primaries a few weeks earlier, Obama had
said that he supported the D.C. handgun ban, and
considered it consistent with the Second Amendment

FactCheck also overlooked the Obama campaign’s statement
when the Supreme Court granted cert. in the D.C. handgun
case: “Obama believes the D.C. handgun law is
constitutional” and that “local communities” should have the
ability “to enact common sense laws.” (Chicago Tribune,
Nov. 20, 2007.)

On the day the U.S. Supreme Court announced its decision in
District of Columbia v. Heller, Obama campaign
announced that he agreed with the Court’s decision because
it affirmed an individual right. (The full quote is
reproduced in another section of the FactCheck report.)
Notably, Obama did not say that he agreed with the
Court’s interpretation that the handgun ban was a violation
of the individual right. Asked about the November 2007
statement supporting the D.C. ban, the campaign
called the statement “inartful.” Not an inaccurate
expression of Obama’s views—just “inartful.”

In sum, FactCheck's label of “False” for the NRA’s statement
that Obama supports laws to “Ban the Manufacture, Sale and
Possession of Handguns" was based on sloppy reading of some
of Obama's statements, and failure to report other
statements explicitly in favor of handgun prohibition.

A similar error is repeated for "Mandate a
Government-Issued License to Purchase a Firearm", which
FactCheck calls "Misleading." FactCheck quotes a Jan. 15,
2008, interview with the late Tim Russert:

NBC's Tim Russert, Jan. 15: Senator
Obama, when you were in the state senate, you talked
about licensing and registering gun owners. Would you do
that as president?
Obama: I don’t think that we can get that done.

Obama then went on to list some things
which thought could be done. The phrase "I don't think we
can get that done" has the same import as "not politically
practicable." It does not convey opposition to the idea.

The NRA claims that Obama’s position includes: "Ban use
of Firearms for Home Self-Defense." FactCheck says this
is “False.” FactCheck discusses Obama’s opposition to an
Illinois bill to prevent localities with handgun bans from
punishing a person who used a handgun in lawful self-defense
on his or her own property. Obama’s statements in opposition
to the bill (which are not quoted by FactCheck) explained
that he was worried that the bill would erode local handgun
bans. (At the time, Chicago and five of its suburbs banned
handguns.)

FactCheck writes: “Letting the owner of an unregistered
firearm escape the penalty for failing to register is one
thing, but it's another thing entirely to make it a crime to
use any firearm – registered or not – in self-defense.”
Well, if you ban a person from having a handgun at all, you
are certainly banning them from using it for self-defense in
the home.

Moreover, the Washington, D.C., gun law--which Obama
supported--forbade the use of any firearm in the home for
self-defense. (Including a registered rifle, a registered
shotgun, or a pre-1976 registered handgun legally possessed
under the grandfather clause). The Supreme Court later
declared the self-defense ban to be unconstitutional.

Another NRA claim which FactCheck says is "False" is:
"Ban Rifle Ammunition Commonly Used for Hunting and Sport
Shooting.” As FactCheck reports, the issue involves
Obama’s support for legislation to expand the federal
definition of armor-piercing ammunition.
Almost
all rifle ammunition used for hunting deer or larger
animals will penetrate a bullet-resistant vest; such vests
are designed to stop handgun ammunition, not rifle
ammunition. (In part because rifles have longer barrels,
their bullets generally have greater velocity, and hence
greater kinetic energy, than handgun bullets.)

Obama supported a bill to give the Attorney General the
administrative authority to ban any rifle ammunition which
can penetrate the type of vests commonly used by police.

FactCheck accurately quoted a limitation in the bill: it
would apply only to ammunition which is “designed or
marketed as having armor piercing capability." The
“marketed” prong is easy, since rifle ammunition makers do
not tout such capability in their advertising.

However, the “designed” language is broad enough to allow
bans on anything. Almost every automobile in the United
States is “designed” to drive over 100 miles per hour. The
speedometers show this capability, and even if they did not,
every automobile manufacturer is fully aware that its autos
can be driven at very fast, unsafe speeds. The auto engines
are “designed” to have a certain amount of power, and this
“design” is based on the full knowledge that that auto can
be driven over 100 mph. Among the definitions of "design" in
Black's Law Dictionary is "The pattern or
configuration of elements in something, such as a work of
art."

Just as the deliberate configuration of the elements of
every automobile can be accurately said to be “designed” to
drive over 100 mph, so every deer-hunting round can be said
to be “designed” to penetrate body armor. Notably, the
ammunition ban language did not say "designed and intended."

FactCheck does quote Senator Kennedy, the sponsor of the
bill, saying that he did not want to ban hunting ammunition.
Nevertheless, the plain language of the bill, and not
Senator Kennedy’s floor statements, were what would be
enacted into law. If there were ever a judicial challenge to
ban on particular rifle ammunition ban, a court might well
find that the language of the statute, along with judicial
deference to agency interpretation of the statute, meant
that there was no need to look to legislative history.

FactCheck give NRA a "Partly True" for: "Expand the
Clinton Semi-Auto Weapons Ban to Include Millions More
Firearms." FactCheck agrees that Obama has declared his
support for "assault weapon" bans, because he think that
"assault weapons" are guns which belong only on "foreign
battlefields." But FactCheck adds: "We're not sure where the
NRA gets its claim that 'millions' of additional weapons
would be covered." The answer is straightforward, in the
Illinois legislature, Obama for
SB 1195, which defines "assault weapons" much more
broadly than the 1994 federal law. It included double-barrel
and break-open shotguns in 28 gauge caliber and larger; and
also banned .50 caliber rifles.

The FactCheck gives the NRA a rating of "Uncertain" to
"Increase Federal Taxes on Guns and Ammunition by 500
Percent" and "Close Down 90 Percent of Gun Shops in
America." Both these statements, FactCheck correctly
reports, come from a newspaper report of Obama's 1999
description his gun control plan. (Chicago Defender,
Dec. 13, 1999.) (At the time, he was running for the U.S.
House of Representatives.) FactCheck notes that Obama has not
pushed for these proposals since his election to the Senate,
and adds, "We asked the Obama campaign about his position on
an ammunition tax but have received no response."

“Uncertain” is an awfully generous label, Obama-wise. Obama
clearly announced he supported the particular policies. He
has never said that he has changed his mind on those
policies. His campaign was specifically offered a chance by
FactCheck to say whether Obama had changed his mind, and the
campaign refused.

Just because Obama is not pushing for something in Congress
does not make the NRA's claim uncertain. FactCheck gives NRA
a "True" for "Pass Federal Laws Eliminating Your
Right-to-Carry." Illinois and Wisconsin are the only two
states which do not have procedures for issuing concealed
handgun carry permits. (40 states issue under mostly
objective standards, while 8 states give nearly limitless
discretion to the issuing authority.) In the 2004 U.S.
Senate campaign, Obama said he favored a national ban on
concealed carry permits. Like the carry ban, the bans on gun
stores and the 500% firearm and ammunition tax proposals do
not become less true simply because Obama is not pushing
them at present.

The NRA gets a "Mostly True" for "Restore Voting Rights
for Five Million Criminals Including Those Who Have been
Convicted of Using a Gun to Commit a Violent Crime."
FactCheck points to the relevant bill co-sponsored by Obama,
and cites the Sentencing Project for the fact that 5.3
million felons who have served their sentences cannot vote.
The Sentencing Project pointed out that most felony
convictions are not for violent or gun crimes. So the NRA
claim is “Entirely True.” The NRA never asserted that most
felony convictions are for violent gun crimes.

"Unsupported" is how FactCheck describes: "Appoint Judges
to the U.S. Supreme Court and Federal Judiciary Who Share
His Views on the Second Amendment." FactCheck's
reasoning is that "the NRA can point to no statement by
Obama calling for a Second-Amendment test for his judicial
appointees, and we could find none."

That Obama has not announced a litmus test does not mean
that it is unrealistic to expect him to appoint Justices who
share his views on Second Amendment and on other matters of
constitutional law. It would be reasonably expected that
Obama appointees would take a similar approach of nominal
support for the individual right, but finding that hardly
any gun controls short of complete prohibition violate that
right.

One final NRA claim does not get a FactCheck rating, but it
does get a response that might as well as come from the
Obama press office. That is: "Obama would be the most
anti-gun president in American history."

FactCheck supplies Obama's quote from Heller decision
day, beginning with "I have always believed that the Second
Amendment protects the right of individuals to bear arms..",
and promising, "As President, I will uphold the
constitutional rights of law-abiding gun-owners, hunters,
and sportsmen. I know that what works in Chicago may not
work in Cheyenne."

Well, that Obama has "always believed" in the individual
Second Amendment right did not prevent him from proposing a
national ban on concealed carry, a ban on 90% of gun stores,
a 500% tax increase on firearms and ammunition--as the
FactCheck article itself reports. If a candidate proposed
banning 90% of bookstores and a huge tax increase on books,
it might be justifiable to predict that he would be "the
most anti-book president in American
history"--notwithstanding his proclaimed belief in the
individual First Amendment right.

FactCheck calls the NRA prediction, "a pretty tall
statement. We don't know how George Washington, John Adams
or Thomas Jefferson might have felt about armor-piercing
ammunition or assault weapons."

Fortunately, there haven't been many anti-gun Presidents, in
U.S. history; and only the Clinton administration invested a
large portion of its political capital in gun control. So
President Obama would not have much competition in the "most
anti-gun" contest.

We know that Washington and Jefferson were avid gun
collectors, and that Jefferson recommended daily hunting as
the best form of exercise. We also know that Jefferson
instituted a
government program to supply guns, at federal expense,
to people who couldn’t own one. We know that neither
Washington, nor Adams, nor Jefferson ever proposed banning a
type of gun simply because it was useful on “battlefields.”

As far as we know, Obama has never fired a gun, or even held
a gun in his hands. We do know that no President in American
history has, in his pre-presidential career, endorsed so
many sweeping prohibitions and other severe controls on
American gun ownership.

The September 22, 2008, FactCheck on the NRA criticism of
Obama is marred by the omission of crucial facts, one-sided
and misleading presentations of issues, and thinly-concealed
political advocacy. According to FactCheck, the NRA refused
to answer FactCheck's request for explanations of its
claims. If so, the refusal provides a partial explanation of
why so many crucial facts were missing. Whatever the reasons
behind the problems in the September 22 report, FactCheck
should publish a substantially revised edition.

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